BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 321
                                                                  Page  1

          Date of Hearing:   April 13, 2011

                        ASSEMBLY COMMITTEE ON APPROPRIATIONS
                                Felipe Fuentes, Chair

                  AB 321 (Hernandez) - As Amended:  March 30, 2011 

          Policy Committee:                              Public 
          SafetyVote:  7-0

          Urgency:     No                   State Mandated Local Program: 
          No     Reimbursable:              

           SUMMARY  

          This bill requires community service and counseling, and 
          authorizes new educational efforts for minors adjudicated for 
          "sexting." Specifically, this bill: 

          1)Requires a court to order community service and counseling - 
            at the expense of the minor's parents - in addition to any 
            other fine, sentence, or as a condition of probation, for any 
            minor adjudicated for possession or control of matter 
            depicting sexual conduct involving a minor. 

            Specifies the court must consider ability to pay, but that 
            inability to pay does not relieve a minor from the counseling 
            requirement.

          2)Authorizes school districts to provide instruction regarding 
            the risks of creating and sharing sexually suggestive or 
            explicit materials through smart phones, social networking 
            sites, and other digital media.

           FISCAL EFFECT  

          1)Unknown minor non-state-reimbursable local costs to probation 
            departments for offender assessments, likely less than 
            $20,000.

          2)Unknown non-state-reimbursable local costs, likely less than 
            $50,000, to probation departments to cover costs of mandatory 
            counseling for families that cannot afford to pay.  

          3)Significant annual GF/Prop 98 cost pressures, potentially in 








                                                                  AB 321
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            excess of $1 million, as a result of codifying a statewide 
            authorization for schools to provide instruction on the 
            dangers of sexting. For example, instructional costs, for a 
            30-minute unit on sexting for 10% of the 9-12 grade student 
            population would be about $500,000. Teacher training for 10% 
            of the teachers would be in the range of $2 million. 
            Instructional materials, at a rate of about $3 per student, 
            would be about $300,000.

           COMMENTS  

           1)Rationale  . The author contends teenage sexting is a 
            significant problem that warrants mandatory community service 
            and counseling, and permissive educational programming. 

           

          2)Current law  :
           
              a)   Prohibits the possession or control of any matter or 
               image, the production of which involves the use of a person 
               under the age of 18, knowing that the matter depicts a 
               person under the age of 18 engaging in or simulating sexual 
               conduct, as defined. Violation is a felony, punishable by 
               up to one 1 year in county jail and/or a fine of up to 
               $2,500, or 16 months, 2, or 3 years in state prison. (Penal 
               Code Section 311.11) 

             b)   Defines "sexual conduct" as a wide range of sexual 
               activities, as well as exhibition of the genitals or pubic 
               or rectal area for the purpose of sexual stimulation of the 
               viewer. (Penal Code Section 311.4(d)(1))

           3)Sexting  is defined by the bill as sending or receiving 
            sexually explicit pictures via a smart phone or other digital 
            device. 


            The author references a 2008 survey of 1,280 teenagers and 
            young adults of both sexes sponsored by The National Campaign 
            to Prevent Teen and Unplanned Pregnancy, which reported that 
            20% of teens and 33% of young adults had sent nude or 
            semi-nude photographs of themselves electronically.  










                                                                  AB 321
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           4)Fiscal Concerns  . Given current state fiscal conditions, which 
            could result in multi-billion cuts to K-12 schools, and a 
            major realignment of criminal justice responsibilities that 
            will have county probation departments shouldering significant 
            new responsibilities for youth and adult supervision, is this 
            the appropriate time to encourage new K-12 instructional 
            efforts, which would replace existing educational content, and 
            to require community service and counseling for sexting, 
            rather than letting juvenile courts decide on a case-by-case 
            basis?  

           5)Judicial Concerns  . This committee has generally attempted to 
            protect judicial discretion, which allows for the evaluation 
            of case-specific circumstances.

           6)Opposition . The Youth Law Center opposes the mandatory 
            counseling provisions, stating, "First, this criminalizes 
            adolescent behavior by handling the situation through the 
            justice system, and worse, by linking "sexting" to a statute 
            directed at child pornography?. Second, we oppose the 
            imposition of mandatory community service and counseling. 
            Adults convicted of child pornography would not be subjected 
            to mandatory sanctions, and there is no justification for 
            imposing a different disposition standard for juveniles. 
            Further, under Welfare and Institutions Code section 220, 
            juvenile courts have the duty to order individualized care, 
            treatment and guidance for juveniles, and the court might, for 
            example, decide that community service would not be the best 
            fit in a particular case." 

           
          Analysis Prepared by  :    Geoff Long / APPR. / (916) 319-2081